>> up next on the 2012 tucson festival of books, a discussion with jeffrey rosen, legal affairs editor of the new republic and author of the supreme court, the personalities and rivalries that defended america. it is moderated by tony massaro, constitutional law professor and dean emeritus at the university of arizona. james e. rogers college of law. this is about an hour. tucso .. the country. i'm toni from the university of arizona college of law, and i'm here to moderate the discussion with one of my favorite authors, and i suspect the reason you're here is you feel the same way. he's absolutely fabulous, and before we get going, buy the book. [laughter] i want to first acknowledge with great gratitude the law firm of
mcdonald and lacy for sponsoring this event, a little shout out to one of the local fantastic firms here in tucson but especially notable for all of the public service and pro bono work that they do consistently over time. it's a premier firm, and we're grateful to them for making events like this possible. please, turn off your cell phones, and i want to tell you up front the author's going to be available shortly after this session. if you go out of the union and make a right turn to the madden book-signing area, mr. rosen, professor rosen will be at tent b. we were told to keep the introduction tight. i could go on at length, but the highlights are he's a professor at george washington university where he teaches constitutional law. you probably know him most as a commentator on legal affairs, in particular with the new republic where he's been since 1992. he's written for "the new york times" magazine, he's, you can hear him occasionally on npr,
written for "the washington post," he's the author of six terrific books and currently working on a new one on justice brandeis. he's consistentlier you diet, thoughtful. in terms of zeroing in on issues in a way that is both accessible to sophisticated lay people and spot on for those who are more familiar with the legal issues which is an extraordinarily difficult thing to master. some years ago he was our guest here at the university of arizona as the marx lecturer, and i can tell you as somebody who was responsible for stewarding those guests that he's also one of the most gracious people ever to come to tucson, and we're very delighted to have this public intellectual and stunningly prolific writer back here with us. jeff, i want to talk about -- [applause] they captioned in the innermost
chambers of the supreme court, but we're going to focus this afternoon in the limited time we have on his most recent book, and that is co-edited with benjamin wittes, and it's titled constitution 3.0. it's a project out of the brookings institution project on technology and the constitution. and here is the focus of it. the multiple ways in which technology is transforming who we are, who we think we are, how we interact, surveillance, ways in which we can identify you, hoe candidate you, look inside of you -- locate you, look inside of you andal of these things with respect to the legal implications, in the particular with respect to the constitutional implications. now, he's been work anything this vineyard for some time, and this latest book just builds on the insights that are in his book, "the naked crowd," which he published in 2004, and "the unwanted gaze," which he publish inside 2000.
freedom and technological change coffers a lot of ground. airport scans, cookies, brain imaging, dna testing, let's start with the internet and social media. and i'm going to start, and who is the boss of us these days? it's conventional for people to think of first amendment invasions or restrictions op your freedom of -- on your freedom of speech as coming from the government. and, in fact, in constitutional law that is where it is locate canned, government intervention violates free speech, not private interventions. and yet there's a really good question right now which you've examined and looked at, who should -- of whom should we be more afraid, the government or an unregulated mark zuckerberg or nicole wong, formerly of google? >> wonderful question, toni. [laughter] and, first, let me say how thrilled i was when i learned you were going to be moderating this conversation. i had such a wonderful time when i came to the university of arizona five years ago. we bonded over your wonderful
constitutional scholarship and a superb job you did as dean, and i know i couldn't be in better hands for this conversation. [applause] >> thanks. so, yes, who to fear most? what do we do, ladies and gentlemen, living in a world where lawyers at google and facebook have more power over the future of privacy and free speech than any king or president or supreme court justice? this came home to me a few years ago when i went to google and had a chance to interview the woman who has to be considered the free speech adjudicator for the entire world. her name was, her name still is although no longer playing this role, nicole wong, and her colleagues called her the decider. [laughter] because she was the one who literally decided what went up and what came down not only on google.com, not only on each of 150 search engines that google
runs. so nicole wong was the one woken up in the middle of the night by frantic calls from the turkish google employees who learned that the turkish government has blocked people in turkey because the editor, the founder of modern turkey was gay which is not true, but it's illegal in turkey. so these youtube videos got put up, and she had to decide whether it was legal, is it on the borderline of political criticism? she's afraid of the safety of her employees on the ground, meanwhile she doesn't speak turkish and doesn't know how to get to this district judge in turkey who's ordering that google be blocked, and multiply that by criticisms of the thai king which is illegal in thailand or holocaust denial material illegal in germany.
the scope of the task was so overwhelming that she actually said it wasn't a job she felt she could handle or wanted, and she's left recently for greener pastures. so what to do in this world -- and that's just free speech. we'll be talking about privacy. what to do in this world where, after all, the constitution says congress shall make no law abridging freedom of speech. the fourth amendment says the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, but the fourth amendment only binds the government, it doesn't bind mark zuckerberg. and one of the persistent themes that a bunch of great authors we got together explore in this collection is how can we translate constitutional values into a world of new technologies where the constitution doesn't formally apply? >> well, and it's not entirely new, is it? think of of the time with the advent of television and anticipating that this was going to be a potential huge information capture problem, right? >> yes.
newt minnow is a great reminder, the chairman who warned that television was a vast wasteland and proved to be correct. [laughter] but newt minnow's scruples look almost quaint. network television is a veritable -- [inaudible] abbey compared with the internet, and, of course, newt minnow's age was a world where the three broadcast networks controlled who spoke. it wasn't lawyers at google, it was the head of abc and cbs. contrast that with the 1920s, the previous free speech era, then it was the government putting eugene debs, candidate for president, in jail l for criticizing the war. so we've moved from the government is the threat to the broadcast networks to now the lawyers at the internet service providers. and it's the isp people who have a vastly more complicated task. >> and, of course, this show is to prove that it's not entirely
a vast wasteland. >> thanks to c-span. we always say that whenever we appear. [laughter] >> so, um, another thing that you've grappled with in your writing and have for a long time are the multiple ways in which we fear that technology could compromise this, on unprecedented ways reputation and also freeze our identity. many people, including you, have focused in particular on the global, instantaneous impact of the internet and the persistence of it. i think most people when they're young commit mistakes. it's not that we stop committing them, but maybe the most grotesque ones happen when you're young. [laughter] >> speak for yourself. [laughter] i think i was. [laughter] and all advice is -- anyway, but, you know, the phrase forever young. but do we really want b -- to be
forever callow? >> actually, that doesn't sound so bad. [laughter] this problem of how to escape your digital path on the internet is so riveting, because it pulls me in two separate directions. on the one hand, my privacy instincts are concerned about the plight of all these young people who post drunken pictures from cancun and are finding themselves fired or unable to get hired in the future because of it. there's this riveting story of a young woman who was a teacher in training in pennsylvania a few years ago who posted a picture of herself on myspace wearing a pirates hat and drinking for a plastic cup, and her supervisor at the school saw this, said she was promoting underage drinking and fired her days before her graduation. she sued, she said her free speech rights were infringed, a judge said it wasn't protected speech, and her career was totally derailed. she's working in human resources now. she never became a teacher.
you could say she gave bad judgment, but surely her life shouldn't have been ruined. on the other hand, there's my free speech instinct, so europe as if to express this privacy concern has just proposed the most sweeping, new data privacy right in the past decade, and it's called the right to be forgotten. and you won't be surprised to learn this came from france. [laughter] it's straight out of sark. it's existential because the french want to be forgotten, and americans want b to -- want to e remembered. [laughter] but it was proposed at the end of a january, and its scope is broader than almost anyone has realized. under this right you have the legal entitlement not only to demand that facebook or google remove any embarrassing picture that you post about yourself and want to have taken down, that's uncontroversial and is already covered by google's privacy policies, but would also require me to remove a picture of myself
that was widely circulated. in argentina a pop star posed for racy pictures, they went viral, and she thought the better of it. she was running for parliament or something, and she wanted them taken down. [laughter] she sued. google and yao said don't -- yahoo! said don't index the pictures, take them down. they said, we can't. a judge said, you better, we're going to fine you $5,000 a day. technologically we're going to remove all references to this woman, so when you put her name into the yahoo! search engine, you get a blank page and a judicial order. it would allow people to selectively delete their past, and then in addition to that the right to be forgotten would arguably allow me to object to a nasty-but-true status update someone else posted that i found disreputable and insulting and demand that be taken down, and google could be liable for 1% of its $30 billion annual income if
it doesn't abide by this. google is understandably concerned, american regulators are quietly working behind the scenes, but this shows how different the american free speech and privacy traditions are, and for myself as a privacy guy i feel like the guy on the titanic who said i asked for ice, but this is ridiculous. [laughter] >> so it's, it's the persistence, it's the global nature, um, one bad moment of poor judgment, and you may be hasn'ted by it for the rest of -- haunted by it for the rest of your life. of course, the risk of that has always been there. it's just the chances you'll be the one for whom all these characterrists are true have gob way up. normally, it would have been public figures and not just some potential schoolteacher. but i think there's another aspect of in that there's just too much information, and we're putting it out constantly and unself-consciously. another aspect of technology is
it's more easily synthesized now, and it can be used about us. it's almost as though there is this unbelievably brilliant shrink who is observing everything that we do at all times and capable of rendering an incredibly powerful interpretation that we didn't ask for about who we are and what we're doing. and a different kind of involuntary observation. you know what i mean? >> i, i do. i'm not sure it's just an all-seeing shrink. it seems a little more powerful than that. after all, it was in ancient communit we learn that every worth you speak is supposed to ascend to the heavenly cloud, and the all-seeing beginty records -- beginty records everything, but he also gives forgiveness. if you wrong something, you say something nasty about them, you're allowed to go and ask for apologies. and if you go through times, the apology has to be accepted, and
once it is, then the heavenly cloud is wiped clean. contrast that with the digital cloud where the keepers are far less empathetic and forgiving than their divine predecessor. eric schmidt, the head of google, said not so long ago, you know, i think, basically, if people make mistakes, they just have to live with it, and if they really feel bad, then they can just change their names. [laughter] not, the almighty father had a different view about visiting the sins of the parents on their children. but it's almost -- this is why i've always balked at the phrase "global village," which seems like an oxymoron. people know each other whole, they know each other in context. my neighborhoods in a small village might see me going to the liquor store to buy my bourbon, but they also know i'm nice to my kids. in google the worst thing you've done is the first thing people
know about you. people are constantly judged out of condition text on the basis -- context on the basis of snippets of information that can only emerge slowly, over time in areas of reciprocity and intimacy, and that's why i fear our current state is far more be brutal than traditional communities were. >> related to that, i think s the whole controversy about using shaming, public shaming as a vehicle for encouraging norm enforcement, and john braceway has done some fantastic work on exactly the same point that you're making here, that shaming and shunning makes sense within a community in which there's some hope of reintegration rather than being banished forever. and so i think it's a profound point that has aspects that speak to whether it's a decent community or one in which you'd want to live. well, so more on the surveillance, the gps tracking. another aspect, you know, i'll leave this room, and i'll go to
my car, and i'll go buy bourbon, oh, no. [laughter] >> i'll buy you the bourbon. just kidding. my flask here. [laughter] >> the gps tracking case, you know, this geolocational capacity of government, were you surprised at how the court came out? encouraged by the opinion and the narrowness of it? or why don't you tell them a little bit about the facts and what your observations are about that recent case, please. >> this is a remarkable decision. the u.s. v jones case, which is an occasion -- and perhaps for dancing in the chat rooms, i mean, really it's a thrilling decision on one level or at the very least the phrase that comes to mind is modified rapture. [laughter] because this -- i never would have expected that the supreme court unanimously, 9-0, would reject the unnecessarily sweeping position of the obama administration and several lower federal courts that citizens
have no expectations of privacy in public. so here are the facts of this fascinating case. the cops suspect someone of dealing drugs, they get a judicial warrant, and they put a gps the size of a credit card on the bottom of his car, and they then track his movements 24/7 for a month, and based on this tracking they conclude he is, indeed, dealing drugs, and they indict him, and he's convicted. he objects and says the gps evidence should be excluded because the surveillance was to start in ten days, it started on the 11th day. so for the purpose of the case, the justices had to assume there was no valid warrant, and the question is can the cops without a warrant track you 24/7? the court, divided as you said, about why it was that this tracking was impermissible. five justices, led by antonin scalia, focused on the fact that the man's property interests were invaded. there was a physical trespass
committed when the police put the device on the bottom of the car with the intent to collect information, and scalia said at the time of the framing of the constitution even the smallest trespass was considered a search and presumptively required a warrant and, therefore, this was a search as well. but in, i mean, i think you'd have to just call it a visionary decision. justice samuel alito of all people joined by three of the liberal justices took a far broader view. he said it makes no sense to focus on physical trespass because that was just an add vim here. the cops could have gotten the same information by subpoenaing a lowjack that was installed in his car, or the government could require all cars to have installed gps' or they could get it from our cell phone companies which store our data on third party servers. so alito said we're going to have far less privacy today if we focus on the trespass rights
that the framers took for granted. instead, alito drew a distinction between short-term and long-term surveillance. he said when you track someone 24/7 for a month, you can learn so much about this them. the people they associate with, the meetings they go to, their bars, the abortion clinics, their hopes and fears that we do have an expectation of privacy in the whole of our movements. and then challenged by and scalo identify the precise point, alito said it's true that you don't need a warrant to track someone for 100 miles or a day because the cops could. plausibly put a tail on you, but to track you for a month you'd need a thousand cops, and, therefore, no one expects that degree of tracking. alito refused to specify the exact point, but he said monthlong requires a warrant, daylong does not. but if cops are unsure, they should get a warrant. this is just the most dramatic
grappling of the effort that this whole book is about to translate the constitution in light of new technologies. i think both decisions, frankly, were helpful. it was good for scalia to recognize that property can sometimes be at least a floor for privacy rights, it was wonderful for alito to get past this formalism and to focus on the intensity of the surveillance. and then finally, there was a very interesting concurring opinion by judge sonia sotomayor who said in the future the real problem is this notion that the court has bought into in the past that when i surrender data to a third party for one purpose, i abandon all expectation of privacy for it and other purposes. this, as you know, is called the third party doctrine, and it basically means we have no privacy in our private papers or locational data, all of which are stored either in cell phone databases or in distributed third party servers owned by google and yahoo! and the digital crowd. that means anytime i store my data outside a locked desk drawer in my home, i abandon
expectation of privacy, and sotomayor says the court has to rethink that notion. >> and also this idea that privacy interests are determined by our reasonable expectations, i mean, that's too manipulative, don't you think? we can change your expectation. here's your expectation of privacy, mr. rosen. zero. >> it makes no sense. the government by announcing you may be monitored at all times could lore our expectations. so here's my -- here's a hypothetical that i begin one of the chapters in there with, but it's less and less hypothetical in light of this case. i was at a conference that google, a few years ago, i think it was 2007 now, and the head of public policy at google said he expects within a few years google and facebook will be asked to put live online all the public and private surveillance cameras that are now blanketing the world. so there are already a few apps like this on facebook, you can sign on to facebook and look at live feeds of beach cameras in mexico which are lahr with teenager -- popular with teenage
boys. so imagine linking the beach cams with the washington subway cams and arizona traffic cams -- [laughter] and basically archive and store them. if this were done across the globe, you could sign on to any street view in the world, click on a picture of someone, say me, back click on where i came from this morning and basically have 24/7, ubiquitous, realtime surveillance of anyone in the entire world. would -- i heard a gasp in the audience about that ponte. [laughter] -- possibility. that sort of surveillance would be permissible under the court's doctrine if google announced when you sign on you assume the risk by using google that you may be tracked by google or by the government at all times. or it could be perfectly permissible if even before this integrated camera system gets up and running drones in public places become so ubiquitous, flying drones to track us for
commercial purposes and then sell ads to us based on our conduct that the court might just say because this technology isn't general public use, we no longer have expectations that we're not being tracked at all times. so as you suggest, the circularity of this expectation of privacy test is one of the biggest problems and current constitutional doctrine. what the alternative is i'm not sure. i think the best guidance that i came across was, um, a wonderful opinion by justice john marshall harlan in the 1970s. he said the question can't be how much privacy do people subjectively expect, it has to be how much privacy must citizens normatively demand to have security in their liberty in a free society? and that's a hard question. judges are uncomfortable deciding how much minimal privacy we need to be free and spontaneous and creative and not constantly looking over our shoulders. but i think that's a question that can't turn on expectations, it's just going to have to be at some point confronted.
>> it's not just the aspect of pryce when we're out in -- privacy when we're out in public, but their capacity to peer into us now. it's not just geolocational. but i'm thinking now of the both positive and downside of, say, dna testing and the bloody brick case out of england which, and the spillover effects of dna testing. on the one hand, we know and celebrate the capacity to release people who are wrongly convicted, but what about those who are wrongly cast a shadow over by, you know, inappropriate dna testing? >> such a fascinating and challenging series of issues. as you say, dna testing is responsible for the overturning of 255 wrongful convictions, people on row and life imprisonment have been exonerated based on dna testing, so it's invaluable. but it can have some very troubling effects.
one of them that's examined in the book is familial dna testing which is especially popular in england. the cops will go to the crime scene, they'll get a sample, they'll run it through the database and they'll get a near match of someone who's probably related to someone at the crime scene, and based on that near match they'll then round up members of the family of suspects, or they might even go to a small town and ask voluntarily for everyone in the town to give dna samples and then do follow-up interviews and sometimes get confessions. on the within hand, this has in some ways led to culprits being discovered, on the other hand, it can lead to a kind of genetic surveillance that can have racial effects. african-americans are far more likely to be surveilled and identified by a rate of 4 to 1 than white people based on this sort of surveillance. and in addition to that troubling aspect, there are all
sorts of dangers when the government stores dna samples not nearly on conviction for serious crimes, but even on arrest for traffic offenses as britain is trying to do or demands that dna sample at birth as some nordic countries are trying to do and then can use this information to make predictions about our genetic difficulties, about our insurance risks, to deny us jobs. obviously, the need to insure that the information is only used to solve serious crimes and not to deny us opportunities based on our predispositions is hugely important. >> another aspect of predispositions here at the university of arizona they're doing some path-breaking migraine analysis and the scientific aspects of who we are and who we think we are. that as technology advances, too, you can imagine would it be a good thing if we actually could scan a brain and determine there was some propensity for future dangerousness or scan a brain and, you know, determine that certain characteristics are
present, of course, with worries about how it would be used. for me i think there's no stopping that science, but on the use side it hearkens back to are women's brains different from men's brains, are -- or the search for this gene or that gene and the terrible consequences that can flow from misuse of that information. >> absolutely. it's, many have compared this to a new eugenics, the science of better breeding based on the idea that we could identify by friend logical maps or other forms of predictions the strongest race. at the time l eugenics was popular with progressives. oliver wendell holmes, the great justice, was an enthusiastic eugenicist who upheld laws mandating sterilization in america with the memorable aphorism, three generations of imbeciles is enough. [laughter] so we shouldn't -- we laugh, and then he went back and wrote to
his friend this morning i upheld the law mandating thesterrization of imbeciles. the idea of him as a cuddly, liberal saint is too simplistic. so now what would the new eugenics look like? as you suggest, if these brain scans are only sophisticated lie detector tests, maybe we're not so uncomfortable. you could take someone off the street and show them a picture of a training camp in afghanistan. if they'd been there, their brain would light up in a certain way, if they hadn't, they wouldn'ted, and you could just -- wouldn't, and you could just make decisions based on that. maybe that's just like a lie detector. but imagine the other scenario, take someone off the street, hook them up to the brain scan, find that the gray matter suggests the area for impulse control is overactive, and the prefrontal cortex which restrains you is not sufficiently active, based on this you have the brain map of a potential terrorist, and you're indefinitely detained based on
threat to liberty are not covered. >> the abuse of statistical been to this is been a problem for some time, simply because whenever we have a criminologist year that said everyone to stop a lot of violent crimes we would warehousing and males between the age of 14 to 21 so they gravid. [laughter] obviously that would be improper. >> there was that brief filed in the case involving the execution have juveniles, justice kennedy cited it, brain scanning evidence suggesting that adolescents have problems with campbell's control. talk about stating the obvious. [laughter] >> right. in teaching constitutional law and equal protection and the older cases that have to do with race and peoples assumption of ridiculous assumption that it is some binary on off for your in or not. one of the more eliminating things about the dna testing is for people to find out there are not heated up the work in ways
that begin to destabilize these kinds of categories. could potentially have positive implications for how we see or, perhaps, cease to see race. so it is not are one way ratchet. he talked a lot about back into the case that involved a gpa is ngo location aspects of privacy and a court struggling with this property based notion. lots of talk today about federalism and states' rights. in fact, people think it is the most important constitutional issue a player right now. yet it seems ironic to me that we have the rise of verizon technology erasing territorial lines in ways that fairly obviously make as quite as you said earlier the notions that geographical blurs have. and yet there is this harkening back to these, the skill that
age notion of the constitution and wanting to draw property lines in the sand striking me as a big potential mistake the constitutional analysis is on a collision course with the self. limiting principles oranian then . an obsession about geographical or even some realigns. >> it's such a hard question. as you suggest and on the one hand it's absurd to try to solve the problem of jill additional tracking geographically. pointed out in response, if it's all based on property rights than the rules are going to be different. might have authorized the transborder search. so that doesn't seem very practical. on the other hand i'm not ready to throw away concerns about federal is an entirely only because my hero and died on all the questions, especially involving privacy is louis
brandeis, and i always ask myself when faced with our privacy question immobile would brandeis to. and in addition to being a great champion of rights to privacy in a technological age, also a great defender of states' rights. he opposed not only when it came to the greedy banks like j.p. morgan which took lists with other people's money this led to the press and 1929 and led brandeis to prick that depression but also opposed the curse in government. he joined the unanimous decision as to strike down the most centralizing aspects of the new deal. the state's democracy by which is possible to come up with healthy and innovative solutions to technological problems and was very keen on state experimentation. so he doesn't fit into our current categories. a kind of combination of occupy wall street and goldwater republicans and in this regard.
but what did he do about these questions? at think he would certainly see -- of wonder what he would have thought of the internet. it had been horrified by the decline of stability and the degree to which the crowd out matters of public concern. but some of the battered chevrons and discussion groups, versions of the day's discussion he exulted the jeffersonian shares and also in israel, israel which was is ideal for this sort of small-scale engagement. and i think -- here's what i think you're done. he would have been interested in the trade communications' recent antitrust investigation. he would have been concerned that allowing a single company to have such tremendous control over privacy and free speech, he worried about the levitations of human attention, thinking of
nickel, brenda celestite, when j.p. morgan runs all the money in the country the problems are too complex for him to understand the risk. he's likely to make bad decisions. you would have been sympathetic. the complaints that the problem was too complex for to make all these decisions on route. so whether that would have led him to want to break to go up or two cigarettes a different aspects of its business are just a find ways of the power with a different aspects of technology, it was a guide in this respect. >> you know more about working on this book than i do, but it seems to me my sense is that he would have wanted the segregation contractually. it would not have been about the state as such, but that it would have been about breaking up a business where business was not serving the public good and that therefore it would be something to be analyzed on a problem by problem basis. centralization and a global
scheme might work better. the state level or even local level solution. but i get the point, and it is -- he was against business. which today too big to fail, i guess i think you're saying, beyond that one. so all right. on a more personal level when we think about we are not able to have this conversation before because it wasn't an issue, but now you're the father of twins. congratulations. >> thank you very much. >> so what is on their computer? a little too young for them to be facebook in. >> my wife writes about technology and society. the fact that she is writing about the extinction of experience and how they're mediated face-to-face communication, it is transforming our world and all sorts of interesting ways. for the first five years no screen tunnel.
a lot of games of candy land in front of the fire. a birthday candle. finally allowed to see their first version of peter pan, i think. the first. basically we're trying to minimize the screen time without any notion that this is going to , you know, turn it into little mozarts because there is nothing more humbling that having kids and they don't have any idea what i'm doing after five years. completely rebuke that experience. it is a very nice thing and we're glad that they're doing so well. >> we covered a lot of terrain with respect to the information technology and these things that are evolving. let me ask you a better question it is related to the things that most recently the fellow -- your friend and fellow lover, justice
ginsburg to my speculated about whether the old constitution, hours, but no longer be the model for the rest of the world that long has been. put another way, do you think that the old constitution can handle this? or what we are looking at, maybe it categorically new challenge that would require amendment or rethinking? let me elaborate a little more. justice scalia paid attention to this issue. it came up in the violent video case. he said, we don't need a new constitution. we have free time with every new form of technology, with its television or the development of the locomotion, are information technology, movies was the one that he was focused on in that case. and we discover that it is an application of the old constitution and not a reason to abandon the old constitution. is he right or aren't we, for all the reasons that you have
already listed, facing something that is categorically new. writing about the movie the social network. how long is a generation these days? only nine years older than mark and finds the world in which he was living at harvard unrecognizable turk. these are quantum leaps of real looking at. so, have you thought about this in terms of whether our old constitution could take it? >> that is a fascinating question. that exchange, scornful. he said, well, what he really wants to know is what james madison of violent video games. [laughter] and scully shot back, no, i want to know what you would have thought about violence. he may have the better of that exchange. as for the justice, she doesn't he for that, but was very accurately responding to the recent ex mill in the new york times said in practice when new democracies are creating a new constitution they are not
looking to the u.s. constitution but instead to those in europe. do we need a whole new approach for can our venerable be a full document involved mac and so struck by these great essays that we collected. how many of the people we asked to think about this issue recognize that as a complex problem it requires different actors. in some cases you need judges translating the existing text in light of the technologies. the jones case is such a heartening example of the court's willingness to do that, to take technology that the ferris could not have anticipated and protect the same amount of privacy in the 21st century as they would have demanded the 18th. in other cases the constitution does not speak and we need new regulations and statutes. it is that federal trade communication investigation of google, exemplary and some suggest that you will should be regulated like a public utility or facebook should be nationalized or there should be at the very least new electronic
privacy statutes that prohibit year location of data from being shared without consent. does the bill pending in congress and the state's. and in yet other cases political activism is crucial. i have to adjust tell the inspiring story because i think it's such a hopeful one. the body scanning machines at the airports. i began a book in 2004 with this example that was then science fiction. imagine that the government installs and airports body scanning machines that can reveal plastics and contraband, anything concealed under clothing, but also show you completely naked. at the same time the government does not have to install these machines because it is just been presented with an alternative called the blog machine. takes the contraband and plans to the narrow that takes the naked body and scrambles into a blob like 67 talk. back then i said given the choice between the naked machine in the blood you think it would be a no-brainer.
in fact, things turned out very differently. science-fiction hypothetical came to pass a few years later. instead of picking the blob the u.s. government insisted on the naked machine. and it took a political protest galvanized by the immortal cry of patrick henry in the privacy movement, the gel men who stand don't touch my junk. [laughter] that led an alleged citizenry to rise up and to demand a greater degree of privacy. officially embarrassed to told the security to go back to the drawing board to be shocked to discover that they could, in fact and retrofit the machines to create the same machine technology that they had been presented with nearly a decade earlier, so i think it was a terrible regulatory failure, but it just shows in the end when people have -- we citizens have to care enough about privacy to
demand it, and when we do the government will respond. >> modern-day rosa parks. [laughter] you have written a lot of bipartisan judicial restraint, and worrying about the court's getting too far front on issues and a kind of judicial unilateralism. one opinion they you have focused on as plunking that test is a form of unilateralism that got too far out ahead of american opinion and compromise the court's sense of being a neutral institutions. so of course it's more about casey. but many think we are one vote away from possibly and doing it. as there is an ardent privacy person and somebody who has rightly so, i think, talk about privacy as not something that you would be hooked to,
antiquated notions of physical and vases of the sort, but more autonomy and maybe not dignity, but autonomy. would you reconsider in 2012 where there was a good idea and perhaps a good bull work of other liberties or put another way, if it goes what happens to privacy law? >> the fascinating question. i have long been the art and pro-choice skeptic, the fierce supporter of the right to choose, but i thought that when it was decided in 1973 it left dead -- leapt ahead of public opinion, not as protection of relief, but in its refusal to allow the regulation of later term abortion. i do say in the book you read that the decision in 1992 more precisely expressed the sentiment of the modern majority of the country. fiercely protecting early term choice but allowing the restriction of later turned choice, and that, since then
they have suggested about two-thirds of the country supports the right to choose early on. seventy and 80% report support restrictions. so you're absolutely right. there have been a lot of alarm is about the supreme court and presidents of elections for a long time. just naturally we can say, there will be a difference of opinion about what the right answer is, but if the republicans won the white house's time it is very likely to be overturned. the votes are there. things ranging from affirmative action to campaign finance and so forth. at this point i very much believe that this decision has been reaffirmed so many times that the country has come to depend on it in so many ways that it will be a gross act of judicial activism. i hope the court doesn't, but then you ask, could is applied
to other minor issues involving privacy in the economy? and the irony has become really interesting. so the decision of upholding famously said that the core of liberty is the right to find one's own conception and meaning of the universe, mystery of human life. justice scalia ridiculed this as a sweet mystery of life. but it was to purple, but the truth is that the sweet mystery of life notion of autonomy could be a great way of regulating gps tracking. if i have a basic way to define myself i control my identity and to be free from coercive pressures to behave in a certain way in the government should not be able to use the facebook system to track me 24 / seven. almost a more natural way of regulating gps tracking and property rights. here is an even more surprising irony. one of the briefs in the health care challenge that the supreme court is about to hear at the end of march focused not on the
idea of congress having limited powers under the commerce clause to regulate the economy because after all, many libertarians believe that neither congress nor the state should have the right to pass a health care mandate to force you to buy health care or as i like to say eat broccoli or go to health clubs. there is that wonderful moment in the presidential republican debate where mitt romney was trying to defend his health care mandate say what we did in massachusetts was okay, but the federal version doesn't. what's the difference said michele bachmann. well, massachusetts is a state. the states to do with it want. bachmann said i think that the states nor congress should be able to do this, and she invoked this basic notion of autonomy which is spelled out in one of the briefs in the health care case which cites none other than roe v. wade. justice kennedy's opinion in the sweet mystery case where they say the right to define your own consumption of the meaning of life should prevent the government from telling you to buy health care.
that is the completely intellectually coherent position my friends at the cato institute, a libertarian think tank in washington, are fiercely pro-choice, pro gay marriage and anti health care mandate. they want to restrict the government from making as by health care or telling us we can mario will begin do with the bodies. justice kennedy is the only justice on the supreme court who has some sympathy for those views. do i expect you would cited to strike down the mandate, no. he would not go that far. as with the other conservatives, scalia and collegial and roberts, this is bound to make their heads bowed to refer them it is the root of all constitutional evil. who says it must, the case involving economic freedom of contract. robert bork. it won't have any of it. that's why we're talking about other subjects. i've gotten out of the prediction business when it comes to this. but given the fact that scalia,
roberts, and alito have embraced a rather broad vision of congress' power allowing the federal government, for example, to overturn medical marijuana laws, i was surprised when two of the most respected conservatives upheld the health care mandate under the commerce clause without any trouble. they just dismissed summarily a challenge. as long as the supreme court sticks to the commerce clause challenge in doesn't invoke these privacy issues, which i don't expect them to, then a decision upholding health care by a comfortable margin would not be a surprise. >> it's not just a comparison, but he has compared dread scott. so i have one final question because i want to give the audience a chance. the new publisher and editor in chief who looks like a four year-old, very young person.
he got a letter to the new republic leaders, and he said nearly a century after the inaugural issue of the new republic people, once again skeptical that quality journalism can flourish, technology destruction of traditional forms of media has led many to believe that independent thoughtful media institutions are on the decline and there are not enough readers to support serious reporting and analysis. obviously this young man we are all grateful for putting his money down on the contrary point of view. my sense is of all the forms of writing that are so spectacularly good, this kind of green tea s.a. for highly motivated readers seem to be in the sweet spot of what your best that. and they're getting everything. what do you think? is he right? is this campbell a good one, are we not going to have the new republic which is almost 100 years old 15 years from now? >> absolutely thrilled. i missed the meeting workers used to lay out his vision
because i was coming in here, but people live absolutely delighted. suddenly it feels like this destitution which has been my home for 20 years, and just nurtured, everything that i've loved about writing, but before this and not sure i would have said that it would have continued and 100 years. suddenly there is a great sense of optimism because chris hughes combines obviously the resources and familiarity with social media tell allow journalism to flourish but also an understanding that it's not supposed to be the huffington post and is not all about money. he was clarifying and refreshing candor, no. he understands that the magazines have never made money. the new republic has been heavily subsidized ever since it was founded in 1914. the idea that he is willing to use his resources to support this in bottled public good and
which is slowed a former journalism which takes time and a lot of commitment and he wants to both pay writers to do and how best to get out there is really exciting. godspeed and i hope to public before deciding what happens. >> so are we. we have time for maybe two questions. if you come to the microphone and pitch them to mr. rosen, but we have to be out of the room promptly at 1230. professor? >> thank you. you have said that the jones case was heartening as an example. yet it seems to me the true opinions take diametrically opposed approaches to and to bring the constitution. embodying the debate that has been going on between regionalism and a living constitution. so are you saying both the pen is heartening example? if not, which? >> i think they both are.
i prefer alito, and i was surprised that the justice did not join the decision rather than. she said since begin decided nearly all go away, but they're both heartening because she took the loss of property, not a feeling, but a floor. saying that it's true that there might be protections for data that gives access, but at the very least whenever there is a physical invasion before the men and is triggered. the same spirit that led scully it said that when there inside the house and move a stereo a tiny bit. or formal imaging to -- imaging technology that reveals how much he was being emitted from the onset of the house had to have a war because it could reveal intimate information inside the house by the hour of the day the lady was having a daily some of. so i think scully is attempting within the constraints of his original list methodology to transit the constitution. i don't think it's going to give him all the way to saving us
from 24 / seven surveillance which i think is why his approach. but i found it incurred in that all the justices rejected the simplistic in the domestic notion that there is no expectation of privacy in public and all struggled to try a chance to the constitution. are you talked about brandeis. i is that really sure that it's m? imagination.and s and isn't an issue, why? whe and it's interesting that seems to be happening at the same timc when you have bought the decline of my republicans in the kind kind of moderateanyb democrat ad never being polarized. is there something different?at?
what is your opinion on not. again, i am torn in different directions. so when john roberts first took office as chief justice and get to interview him. he expressed distress with the partisanship and said he was going to try to a encourage his colleagues to converge around there unanimous opinions and felt this would be good for the court. was very impressed. some people thought to impressed. my wife decided that developed a man crushed. definitely not. you know, i was kind of rooting for an. i was surprised to see how many polarized back-and-forth is is is there were priestesses united, affirmative action, all of these could support your suggestion that the court is like congress, that the left and right have gotten so far apart that there we will compromise and that the metal has disappeared. on the other hand, there are some surprising examples. the jones case is one. i would not have expected that
nine justices, liberal and conservative when all will against a democratic administration position when it comes to surveillance. and if my and gently offered thought that the court mineable health care by a bipartisan majority, if it does robert should get some credit for that. whether he gets creditor not, the supreme court should get credit for having avoided a narrow division. on the other hand, you know, the affirmative-action case. i think that the truth is that the court is being pushed in a direction that we are seeing. so destructive. but occasionally philosophy trump's over ideology, and that's why we see it happening in cases like that i want to celebrate it as much possible. >> i apologize. i've been instructed we have to stop. please join me in thanking mr. rosen. [applause]